HISA Alters Provisional Suspension Procedures

Facing mounting criticism of its provisional suspensions issued to individuals after the initial detection of banned substances, the Horseracing Integrity and Safety Authority announced changes July 28 to its rules on the timing of such suspensions relative to split sample testing.

That change, and other policies regarding provisional suspensions, are effective immediately.

The changes follow the Horseracing Integrity and Welfare Unit, which is charged with implementing HISA's Anti-Doping and Medication Control Program, recently dropping its banned substance case and provisional suspension against trainer McLean Robertson after the results of a split sample, or B sample, test did not confirm initial findings.

Angst: HIWU Drops Banned Substance Case Against Robertson

The revisions to the rules came after a meeting of the ADMC Committee.

Notable rule changes include that "Any Responsible Person who requests that the B Sample be analyzed following a positive test for a Banned Substance shall be eligible for postponement of the effective date of the provisional suspension until such time as the B Sample result is returned." Additionally, "the Responsible Person shall not be required to scratch any Covered Horses entered to race prior to notification of the B Sample confirmation."

Further rule updates include that "Any Responsible Person who does not request the B Sample analysis shall be Provisionally Suspended upon such election, except he/she shall not be required to scratch any Covered Horses entered to race prior to notification of the A Sample positive finding. However, the Responsible Person shall not be entitled to enter any Covered Horses to race subsequent to notification;" and "Any Responsible Person with more than one horse that tests positive for the same Banned Substance within a six-month period or who has received notice of another potential violation relating to a Banned Substance (e.g., possession, use) shall not be eligible for delayed imposition of a Provisional Suspension."

"Covered/Responsible Persons will continue to be Provisionally Suspended upon the notice of the A Sample result" if it involves certain designated substances, the HISA update added.

Speaking with reporters in a Friday morning video conference call, HISA CEO Lisa Lazarus said these substances were consistent with summary suspensions previously issued by state regulators that were classified in the  Association of Racing Commissioners International's "worst category." She said such substances would "not be eligible for the postponement on the basis that they're so serious and raise such a red flag that it wouldn't be appropriate in the best interest of the industry."

Numerous individuals that fit HISA's new protocols that are already under provisional suspension are eligible for these delayed suspensions, Lazarus said. 

The new details of HISA's altered procedures can be found online, as can a summary sheet for trainers. 

HISA, a private self-regulatory organization established in an act passed by Congress, now oversees Thoroughbred racing in most states that conduct racing. It began its ADMC Program this summer after first implementing its Racetrack Safety Program last year. Its legality is being contested in the court system.

In its Friday rules update, HISA stated that "A Provisional Suspension does not in any way change the presumption of innocence and is not an early determination of guilt," although not necessarily to the same extent in the court of public opinion. Many news outlets, including BloodHorse, have reported HIWU's banned substance findings and suspensions. Those findings will continue to be published on the HIWU website, Lazarus said.

The policy changes related to provisional suspensions follow HIWU, HISA's enforcement arm, dropping its banned substance case against Robertson after a split sample test did not confirm initial findings for the progestin altrenogest in gelding Johnny Up  after his June 4 victory in a claiming race at Canterbury Park.

Banned substance findings call for up to a two-year suspension and a $25,000 fine for the trainer. Beyond that, they had previously called for a provisional (immediate) suspension of the trainer, which was put in place in this case. For Robertson that immediate suspension began before the split sample testing was completed, resulting in his missing nearly all of July. The horses he has entered for racing July 29 would be his first starters since July 2.

While Robertson is still frustrated with what he went through, he welcomed the change.

"I figured they would make a change after this. The rule went against the Constitution. A third grader knows this isn't right," Robertson said. "I get what they're trying to do—when you look at these state cases where the findings aren't even reported for months after the race—but you have to be fair. In that regard (fairness), I like that this change will benefit horsemen."

The latest changes also affect owners with horses stabled with a trainer alleged to have committed a banned substance violation, provided they were not the specific horse involved with the banned substance. Under the prior rules, previously-entered horses by the trainer had been scratched.

Now, those horses have the opportunity to race, absent those ineligible under the amended rules, and owners "then have the opportunity afterwards if they want the horse to race again the following week or two weeks later to move the horse to a different trainer," Lazarus said. "So you don't leave a situation where they miss a race because of this without the time to switch trainers, basically.

"And the other obvious consequence is by not enforcing it immediately, you give owners the opportunity to decide what they want to do. Do they want to wait it out? I mean, their trainer may say they have a very compelling defense and if they get the provisional suspension hearing, they believe it will be lifted and they can continue training. So an owner may decide they want to wait; they want to kind of stick with that trainer.

"Another trainer may have a more serious scenario and not have a defense at which point the owner may decide to do something different."

Eric Hamelback, CEO of the National Horsemen's Benevolent and Protective Association, whose organization represents thousands of owners and trainers, commented on the policy change: "The National HBPA understands when there are seismic changes, there will be bumps in any type of implementation. While today's changes announced by HISA are undoubtedly good for horsemen and women, they also highlight the fundamental flaws in HISA. As the NHBPA pointed out long before execution, the HISA rule-making process excludes consensus, full transparency, and industry involvement, leading to bad policies that often must be reversed and do nothing but sow chaos and confusion.

"The NHBPA will continue to advocate for trainers and owners in court, in Congress, and with the Authority to restore common sense and due process. We don't object to this revision, which appears to have been done on the fly without FTC oversight, but we will continue to fight the process that makes such mistakes over and over."

Affiliates of the HBPA are among those entities challenging HISA in court.

The use of provisional suspensions was intended in part to keep individuals from gaming the regulatory system and dragging cases out for months or even years that had sometimes occurred in state regulatory decisions.

Asked by a reporter if she feels the provisional suspension policy change was a backtrack from the intention to eliminate those instances, Lazarus said she didn't see the move "as entirely backtracking."

"So it's basically an extra three weeks, but it's still not waiting until the entire process is complete," she said.

-Frank Angst contributed reporting to this story.